U.S. v. Blount, CIV. 97-4944.

• Decision Date: 22 October 1997
• Docket Number: No. CRIM. 95-73-03.,No. CIV. 97-4944.,CIV. 97-4944.,CRIM. 95-73-03.
• Citation: 982 F.Supp. 327
• Parties: UNITED STATES of America v. Daniel Pernell BLOUNT a/k/a "Pipe".
• Court: U.S. District Court — Eastern District of Pennsylvania

982 F.Supp. 327

UNITED STATES of America v. Daniel Pernell BLOUNT a/k/a "Pipe".

No. CIV. 97-4944.

No. CRIM. 95-73-03.

United States District Court, E.D. Pennsylvania.

October 22, 1997.

Barbara J. Miller, Asst. U.S. Atty., Philadelphia, PA, for U.S.

Daniel Pernell Blount, pro se.

OPINION AND ORDER

VAN ANTWERPEN, District Judge.

I. INTRODUCTION

We have before us Mr. Blount's Motion Under § 2255 to Vacate, "Set Aside, or Correct Sentence by a Person in Federal Custody." Petitioner, a former prison guard at the Lehigh County Prison in Allentown, was indicted by a grand jury for Conspiracy to Distribute Cocaine and Marijuana, Distribution of Marijuana Within 1000 Feet of a School Zone, and Distribution of Marijuana, in violation of 21 U.S.C. §§ 846, 860(a)(1), and 841(b)(1)(D) respectively. The government accused Mr. Blount of being part of a conspiracy headed by Charles Riddick Sr. aimed at smuggling drugs into the Lehigh County Prison.¹ On May 8, 1995, Petitioner pled guilty to Conspiracy to Distribute Cocaine and Marijuana, Distribution of Marijuana and Aiding and Abetting, and Distribution of Marijuana Within 1000 Feet of a School Zone, Aiding and Abetting.

We held three sentencing hearings to consider the sentence in the Petitioner's case. On August 23, 1995, we held a sentencing hearing regarding the proximity of the drug transaction to school property. On November 30, 1995, we held a second hearing to determine the quantity of drugs that the defendants were involved with during the conspiracy and to consider whether the Defendant was entitled to a downward adjustment for acceptance of responsibility. At this hearing

we accepted the testimony of [co-defendants] Shannon Sicher and Nigel McFarlane which, in addition to the testimony at trial, detailed Officer Blount's extensive involvement in the conspiracy headed by the Riddicks. Both witnesses state that Officer Blount was known among the inmates for bringing drugs into the prison. Ms. Sicher testified that Officer Blount was the officer on duty when she had screen room visits with Mr. Riddick. Ms. Sicher also testified she slipped drugs under the door to the utility closet during those visits where other inmates would be waiting to receive them. Also at the November 30 hearing, Mr. McFarlane detailed Officer Blount's specific efforts to deliver drugs to him from outside the prison.

United States v. Blount, 940 F.Supp. 720, 725, aff'd United States v. Riddick, 100 F.3d 949 (3d Cir.1996), cert. denied, ___ U.S. ___, 117 S.Ct. 751, 136 L.Ed.2d 688 (1997).

At a final sentencing hearing on January 12, 1996, this court sentenced Mr. Blount to 121 months imprisonment.

Petitioner argues that he is entitled to either a new trial, or at the very least a resentencing hearing, for four reasons. Mr. Blount asserts that: (1) new evidence is available to prove that he was not a part of the Riddicks' conspiracy; (2) his counsel provided ineffective assistance at sentencing; (3) the court should grant the Petitioner a downward departure for acceptance of responsibility; and (4) the court should grant the Petitioner a downward departure under Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) (approving district court's downward departure because defendant police officers were susceptible to violence in prison because of their profession and the intense media scrutiny of their case), and find that Petitioner's counsel was ineffective for not asking for this downward departure at sentencing. Unfortunately for Mr. Blount, none of his arguments survive close scrutiny of the facts of this case and the governing law.

II. DISCUSSION

A. New Evidence

Though Mr. Blount admits that he was involved with smuggling drugs into the Lehigh County prison, he denies ever being a part of the Riddicks' conspiracy. Mr. Blount claims that he instructed his attorney to subpoena the Riddicks to his sentencing hearing. Petitioner "was confident that their testimony would reflect that there was no connection between the drugs [Petitioner] brought into the prison and the drugs smuggled by the `Riddicks'." Petitioner's Brief at 5. The former prison guard asserts that this testimony could have been given without the Riddicks jeopardizing themselves since "[t]hey would not be asked to testify as to their own involvement with smuggling, only that they never had any connection with Daniel Blount concerning smuggling drugs into the prison." Id. Petitioner argues that

[t]estimony from the "Riddicks" would have been persuasive in that together they knew all that went on in their conspiracy; hence, [they] could with certainty attest that Blount was unconnected with them in any way. By virtue of the conspiracy he formed and directed for many years, it is plain that Riddick Senior is a persuasive man. They would have been even more so persuasive based on testimony possibly being against their penal interests.

Id. at 5-6.

According to Petitioner, his counsel refused to subpoena the Riddicks without interviewing them first. Since the Riddicks' attorneys would not permit such an interview, Mr. Blount's attorney refused to subpoena the Riddicks — despite the wishes of the Petitioner. Id. at 6.

Mr. Blount claims that after sentencing, he set upon the "arduous task of making contact with the `Riddicks' and asking them to testify and/or give affidavits as to [Mr. Blount's] involvement with the `Riddick' conspiracy." Id. Mr. Blount has now submitted affidavits from both Charles Riddick Sr. and Charles Riddick Jr. stating that the Petitioner had nothing to do with their drug smuggling conspiracy. See 6/10/97 Affidavit of Charles Pernell Riddick Sr.; 6/4/97 Affidavit of Charles Pernell Riddick Jr. Based on these affidavits, which Petitioner characterizes as new evidence, Mr. Blount asserts that he is either entitled to a new trial or to resentencing. Petitioner claims that if the court had heard this evidence at sentencing, "it is probable the Court's choice of sentence to impose would have been different." Petitioner's Brief at 7.

Mr. Blount's argument that he is entitled to either a new trial or resentencing based on new evidence must fail because he has not presented any evidence that this court may consider as new. The Third Circuit has held that five requirements must be met before a trial court may order a new trial due to newly discovered evidence:

(a) the evidence must be in fact newly discovered, i.e., discovered since trial;

(b) facts must be alleged from which the court may infer diligence on the part of the movant;

(c) the evidence relied on must not be merely cumulative or impeaching;

(d) it must be material to the issues involved; and

(e) it must be such, and of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal.

Government of the Virgin Islands v. Lima, 774 F.2d 1245, 1250 (3d Cir.1985).

The majority of circuits have conclusively held that the requirement that evidence be discovered since trial is not met "simply by offering the post-trial testimony of a co-conspirator who refused to testify at trial." United States v. Dale, 991 F.2d 819, 839 (D.C.Cir.), cert. denied 510 U.S. 1030, 114 S.Ct. 650, 126 L.Ed.2d 607 (1993); see also United States v. Freeman, 77 F.3d 812, 817 (5th Cir.1996) ("When a defendant is aware of a codefendant's proposed testimony prior to trial, it cannot be deemed newly discovered"); United States v. Theodosopoulos, 48 F.3d 1438, 1448-50 (7th Cir.), cert. denied Ghanayem v. United States, ___ U.S. ___, 116 S.Ct. 191, 133 L.Ed.2d 128 (1995) (unavailable evidence not newly discovered); United States v. Muldrow, 19 F.3d 1332, 1339 (10th Cir.), cert. denied, 513 U.S. 862, 115 S.Ct. 175, 130 L.Ed.2d 110 (1994) (unavailable evidence not newly discovered); United States v. Reyes-Alvarado, 963 F.2d 1184, 1188 (9th Cir.), cert. denied Gonzalez-Ramirez v. United States, 506 U.S. 890, 113 S.Ct. 258, 121 L.Ed.2d 189 (1992) ("The Ninth Circuit has adopted the view that when a defendant who has chosen not to testify subsequently comes forward to offer testimony exculpating a codefendant, the evidence is not `newly discovered'") (internal quotation omitted); United States v. Gustafson, 728 F.2d 1078, 1084 (8th Cir.), cert. denied, 469 U.S. 979, 105 S.Ct. 380, 83 L.Ed.2d 315 (1984) (unavailable evidence is not newly discovered). But see United States v. Montilla-Rivera, 115 F.3d 1060, 1066 (1st Cir.1997) (newly discovered evidence includes evidence that was unavailable).

The Third Circuit is one of the few circuits that has not ruled directly on this issue. However, the Third Circuit's decisions on similar issues convince us that we should follow the majority opinion that newly discovered evidence is not the same thing as newly available evidence.

First of all, in Lima the Court of Appeals explicitly stated that before a trial court may order a new trial due to newly discovered evidence "the evidence must be in fact newly discovered, i.e., discovered since trial[.]" 774 F.2d at 1250. In this case, Mr. Blount did not discover the evidence (that his co-conspirators would testify that he had nothing to do with their conspiracy) after his sentencing hearings. He had this information before he was ever sentenced. Therefore, it cannot, under Lima, be deemed newly discovered.

Second, the Third Circuit in United States v. Bujese, 371 F.2d 120, 125 (3d Cir.1967), held that the record amply supported the "rejection of the so-called `newly discovered' evidence reflected in the statements of the defendant's brother that he, and not the defendant, [committed] the robbery," when The two brothers ... were named as the principals in the robbery in the indictment they were represented by the same counsel when they pleaded not guilty at the arraignment; Jeffrey asked for and received a severance because he wanted his case tried separately from the defendant and Hutchings; the defendant was advised by the...